An interesting article appeared today in Artificial Lawyer (AL), Richard Tromans’ excellent blog on the impact of artificial intelligence, data analytics, and more generally, technology on the practice of law.

The gist of the article is that UK-based insurance law firm BLM has announced a partnership with  the London School of Economics (LSE), to develop litigation prediction models as part of a wider move into legal analytics. According to AL, “The move follows an increasing focus from insurance law firms on legal data analytics and the development of ‘own-brand’ litigation prediction tools. The overall goal of these programs is to forecast the outcome, cost and length of litigation, and to understand what drives these factors.’

Better litigation forecasting analytics could ultimately and perhaps finally drive the stake in the heart of the billable hour model, at least for the defense of certain types of litigation

Better litigation forecasting analytics could ultimately and perhaps finally drive the stake in the heart of the billable hour model, at least for the defense of certain types of litigation. Here’s why. The typical alternative to the billable hour model is where a piece of work, say a slip and fall case, is billed by by the lawyer on a flat fee instead of by the hour.

But the problem with this from the defense side (other than the typical excuse by defense lawyers you can’t predict what will happen with a given case) is the lack of an upside based on anything other than handling the case for less hours than predicted. As a result, the typical approach is a flat fee proposal based on an estimation of the number of hours it will take and offer a flat fee slightly above that amount. The exposure of the case really does not enter into the equation other than how it impacts the number of hours a lawyer thinks he or she can get away with charging. The problem of course is kind of estimation is this really is nothing other than a billable hour model dressed up as a flat fee. It still depends at its core on the billable hour model . So, when the case is over, evaluation of profitability ( and success) on the matter reverts to a billable hour analysis: the lower the billable hours, the happier the client; the higher the billable hours, the happier the lawyer. No wonder there is tension.

When the case is over, evaluation of profitability ( and success) on the matter reverts to a billable hour analysis: the lower the billable hours, the happier the client; the higher the billable hours, the happier the lawyer

Compare this to how most plaintiffs’ lawyers who work primarily on contingency fees evaluate cases. Most plaintiffs’ lawyers get a percentage of the recovery, if any. So, when a case walks in the door, the analysis is not just time but what’s the value of the case, as balanced against the time it will take to get to a resolution.  Time is a factor but overall profitability and success is measured largely by the value of the case and the ability of the plaintiffs’ lawyer to evaluate that value. Success and profitability depend to some extent on the lawyer’s ability to do better than that initial evaluation. And the time analysis they make is also different: it’s not so much how many hours it will take to do the case but also how long will it take to get to a resolution as compared to the projected payoff at the end. That’s a fundamentally different calculation than how many hours will it take me to do the case. And the higher the recovery, the happier the client and the lawyer are.

On the defense side, case and lawyer value should also be determined by whether the lawyer can achieve a better or lower result than some predicted value. But since that predicted value has traditionally been so hard to determine (and defense lawyers will often up the value to justify more billable hours spent on the matter), the industry is left really with no better model than something based on the actual billable hours whether that be the actual amount or some predicted amount in the case of a flat fee.

The ability to accurately forecast an outcome could change the game. If the prediction is accurate and the data sufficient to support it, defense lawyers could offer fees based on some percentage of savings off that predicted value

But the ability to accurately forecast an outcome could change the game. If the prediction is accurate and the data sufficient to support it, defense lawyers could offer fees based on some percentage of savings off that predicted value. The better they do, the more money they make, just like plaintiffs’ lawyers. So, when a case walks in the door, the defense lawyer makes the same analysis that plaintiffs lawyers make: what’s the value of the case, can I do better than that and how long will it take to get to a resolution. Just like with plaintiffs’ lawyers, time becomes only one factor. And just like with plaintiffs’ lawyers, over the course of time, the market determines the good defense lawyers-those who can get the best results for the least amount of time.

Just like with plaintiffs’ lawyers, over the course of time, the market determines the good defense lawyers-those who can get the best results for the least amount of time.

For clients, particularly insurance carriers, this new way of billing would allow them to share the risk with their lawyers in a different way creating more of a partnership model than the more adversarial one we now have. Legal spend becomes much more directly tied to result not time. Just as the lawyers are financially motivated to do the best job in the least amount of time, clients become focused on who really gets the best results perhaps finally driving, as I said at the outset, a proverbial stake in the heart of the billable hour model.

Photo Attribution: Damian Zaleski @zal3wa via Unsplash; Veri Ivanova @veri_ivanova

 

 

Lawyers have a deservedly bad reputation when it comes to technology and its use and adoption. But one group of lawyers is attacking the issue head on.

The FDCC

The Federation of Defense and Corporate Counsel, (of which I am a proud member) is making efforts to be sure its members have state of the art technological tools and skills to better try cases and persuade juries. The Federation, or FDCC as its better known, is “composed of recognized leaders in the legal community who have achieved professional distinction, is dedicated to promoting knowledge, fellowship, and professionalism of its members.”

Membership is by invitation only and candidates are rigorously vetted. The members come mostly from small to mid-size boutique firms that typically handle the defense of high end liability and coverage cases for insurance companies. The group also counts among its members a good number of in house insurance industry members.

The group is close knit, highly collegial and dedicated to making sure it members are the best trial lawyers out there

The group is close knit, highly collegial and dedicated to making sure it members are the best trial lawyers out there. The organization conducts various conferences during the year, hosts several webinars, and has an ongoing trial master’s program. As Scott Kreamer, the present president, put it in his recent holiday video message to the group, one unique aspect of the FDCC is its “feel of family”. Members work together, help each other and genuinely like each other’s company. It’s not uncommon for members to attended weddings of children of other members they have gotten to know. There are even children of members who met during family events at conferences who have married one another.

And most importantly FDCC members still try cases. Lots of cases: it’s not unusual for members to try at least one case a month and sometimes more.

The EVOLVE Initiative

Last year, Scott looked at the offerings of the FDCC and noticed what he thought was an important omission: there was no program devoted exclusively to best practices for the use of state of the art technology in the courtroom. As he put it, “I looked around and didn’t see any resource available for trial attorneys to identify the technologies they need to use in the Courtroom let alone teach them how to use the technologies or provide strategies for that use”.

I looked around and didn’t see any resource available for trial attorneys to identify the technologies they need to use in the Courtroom let alone teach them how to use the technologies or provide strategies for that use

Scott correctly realized that effectively using technology in the courtroom would be a huge advantage and not doing so could be catastrophic. Scott, an affable but tenacious Kansas City trial lawyer, correctly believes that “the foundation of any tech strategy is to use visual presentation tools to enhance good story telling and make teachable moments in the Courtroom memorable.”

Or as Philly native Tom Oakes of Tom Oakes Associates (a leading trial technology provider to lawyers and FDCC members and one of the team members who worked to put Scott’s plan into action), more bluntly put it in his Philadelphia vernacular, “Going into a trial having not mastered relevant technology is like going to a gunfight with a knife”. And it’s not in Scott’s or the FDCC’s DNA to not insure its members were fully armed trial masters.

So, Kreamer convened a special committee of blue ribbon FDCC members and tech evangelists to examine and put together a program. Scott’s vision was a full-blown education and certification program, which would include a website presence that would help evolve the technology skills of FDCC members.

Scott envisioned a 2-3-day hands on intensive program utilizing the best of the best—FDCC members who had truly mastered the use of courtroom technology sharing their knowledge and skills with other members. This leading edge comprehensive trial technology training course would evolve, enhance and strength the abilities of FDCC member to develop visual mindsets and persuasive courtroom technology strategies. The culmination of the program would be the certification by the FDCC of the attendees as Technology Master Advocates which would establish to clients, potential clients and other lawyers that the attorney had special technology training and knowledge. Scott entitled his aggressive initiate EVOLVE.

Scott turned first to Bob Christie, a Seattle trial lawyer who has mastered courtroom technology (and tech in general) to help put together the actual program and curriculum. Bob’s laid-back demeanor masks a ferocious and relentless trial lawyer who is one of the best at his craft. (For a description of how Bob has used tech in the courtroom see my recent post; Bob was recently named Outstanding Defense Trial Lawyer of the Year by his fellow Washington defense lawyers). Others who were asked to help were Matt Cairns, John Delaney, Steve Pasarow, Ed Bruya, Lauren Gleason, Tom Oakes, and Kim LaBounty and Jacob Ellison of the FDCC and last (and probably least), yours truly.

Traveling Coaches and Legal Mind

The group realized early on that 2-3 days would not be enough time to insure the kind of training they had in mind. But they also know that getting people to commit more time in a block might be problematic. Scott then had another idea. He partnered with Cindy Mitchell at Traveling Coaches, one of the nation’s foremost legal training and education providers and convinced them to use their Legal Mind platform to offer an online tutorial program that would be a prerequisite for attending the actual hands on program itself. Bob, who worked with Traveling Coaches to put this together, describes this as “a unique teaching and testing modules on all of the technologies featured on the FDCC Evolve web site. All members attending Tech U will first complete that course work.” The result was that attendees would all have a baseline knowledge going into the hands on training they could then build from.

Tech U

Bob and his team then set about putting an actual training program together which he affectionately named Tech U. Bob’s goal was to help FDCC members evolve their presentation skills “to incorporate the latest information presentation technologies so that they can better connect to their audience.” As Bob noted most lawyers “already have software on their computers that allow then to give compelling presentations. They often just don’t know how to use it.”

At Tech U, members will be exposed to lectures, demonstrations and performance workshops designed to enhance and strengthen their ability to develop a visual mindset and tech strategy. Working in teams, members will build presentations for use in arbitrations, client updates, mediations, mock jury work, and in the courtroom and will make live demonstrations to the full class, subject to evaluation and comment

His idea was to divide the attendees into small groups and have them each put together an opening statement, cross and direct examination and closing statement using various tools. The groups would be assisted by various designated coaches themselves were skilled in technology and trial presentations. As Bob put it, “At Tech U, members will be exposed to lectures, demonstrations and performance workshops designed to enhance and strengthen their ability to develop a visual mindset and tech strategy. Working in teams, members will build presentations for use in arbitrations, client updates, mediations, mock jury work, and in the courtroom and will make live demonstrations to the full class, subject to evaluation and comment”. Bob and his team even convinced a well-known plaintiff’s lawyer who frequently uses technology in the Courtroom, Robert Mongeluzzi, to come and share insights with the group.

To further help FDCC members, the team also curated a group of technologies and feature them on the FDCC Evolve website along with comprehensive step-by-step instructions on their setup and use.

All too often we hear that lawyers stick their heads in the sand when it comes to technology. It’s nice to see a group be proactive and embrace rather than hide from technology. As Scott proudly put it, “EVOLVE is one of the boldest initiatives the FDCC has undertaken and will provide attorneys with the hands-on training on how to use the latest technologies to tell their client’s story in ways never possible”. Bravo.

So I’ve spent the past 3 days walking the Exhibit Floor at ALM’s LegalWeek18. Hundreds of booths; I frankly never knew there were still so many eDiscovery providers. 

 

But one vendor caught my eye. Cloudlex advertises itself “as the only Legal Cloud built exclusively for personal injury law firms”. This got me to thinking. There are all these legal tech providers trying to sell tools to lawyers to make them more efficient. But most of the marketing dollars seem to be directed toward firms whose business model is the billable hour. Continue Reading Plaintiffs’ Lawyers: A Neglected LegalTech Market?

I had a chance to catch up with Avaneesh Marwaha, CEO of Litera Microsystems earlier this week at LegalWeek18. Litera Microsystems is one of the larger document management service and technology providers with a range of products in this space. I first met Avaneesh at last year’s ILTA conference shortly after the Litera Microsystems merger which I wrote about in a piece for the Lawyerist. At that time, the CEO decision was up in the air although it seemed pretty obvious to me at least that Avaneesh was the likely choice. Continue Reading Avaneesh Marwaha, Litera Microsystems CEO, Talks About Tech, LegalWeek and Litera Microsystems

 



I’m spending this week at LegalWeek 2018, ALM’s annual event in New York. Lots of good presentations and talks.

 

One of the more intriguing presentation was on the official opening day of the Conference. Steve Kovalan and Nicholas Bruch– both of ALM—offered a presentation on the state of the legal market. They started by debunking the notions Continue Reading The AmLaw 200: At Risk?

The Janus Issue

The Supreme Court is set to consider in late February in Janus v. American Federation of State, County and Municipal Employees whether workers can be forced to pay union dues even when they don’t agree with the Union’s political activities or simply don’t want to. If the Court holds that these mandatory fees violate workers’ First Amendment rights, a large and perhaps unrepairable crack in the power dam held by state bar associations may be about to occur. Continue Reading Is SCOTUS About to Disrupt the Legal Profession?

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Last week, the legal tech community was rocked to learn that the lawyer rating service, Avvo, had been acquired by something called Internet Brands. Internet Brands is in turn owned by the private investment powerhouse KKR.

 

Avvo has always been a lightning rod Continue Reading Wither Avvo?

“They can’t take it from me, if they try, I lived though those early days.

Early Days by Paul McCartney

 

I constantly marvel at the technology we have today. I am a tech and innovation evangelist. I believe the delivery of legal services can and will be improved and disrupted. I can’t wait.

 

But that doesn’t mean I don’t sometimes reflect back to the way things were when I first began as a lawyer. Some things were worse. Some things were better. Some were just, well, different. And I wonder how much the technological tools we have and the innovation that’s out there have truly created the positive changes of which they are capable Continue Reading #legaltech #innovation: Changes for the Better?

Much has been written about the ethical duties of a lawyer regarding technology, a duty found in Rule 1.1 (competence), Rule 1.6 (confidentiality), Rule 1.5 (ethical billing) and Rules 5.1 and 5.3 (supervisory responsibilities). These rules and their nuances should in and of themselves be enough for lawyers to be as inquisitive and knowledgeable about tech as they are the substantive law.

But forgetting these for a moment and that technology can generally make us more efficient, there are also some 6 very sound practical reasons lawyers should be familiar with and welcome technology and, as expressed in Comment 8, know of its benefits and risks. Continue Reading Technological Competence for Lawyers: Six Practical Reasons

This week, the International Legal Technology Association or ILTA as its commonly known, released the results of its annual technology survey. ILTA refers to itself as a peer to peer networking organization for those in the legal tech field. Unlike the ABA Tech Survey which also recently came out, ILTA survey respondents tend to be from larger firms and are people who work in the legal tech field as opposed to practicing lawyers.

 

So, what are the takeaways? On a quick review, 5 things stood out: Continue Reading ILTA 2017 Technology Survey: 5 Quick Takeaways